What happens to an order of a High Court when a SLP challenging that order is dismissed by the Supreme Court

GST UPDATE

Hon’ble Court: Supreme Court of India
Case Title: Kunhayammed & Ors. v. State of Kerala & Anr.
Petition No. & Citation: AIR 2000 SUPREME COURT 2587,

Hon’ble Judge(s)	K.T. Thomas, D.P. Mohapatra, R C Lahoti
Date of Order	19/07/2000
Outcome

Brief Facts of the Case

The case arose from a dispute concerning approximately 1020 acres of land claimed by a family of 71 members under the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Forest Tribunal held that the land did not vest in the Government and, on appeal, the Kerala High Court upheld the Tribunal’s decision on 17.12.1982. The State thereafter filed a Special Leave Petition (SLP) under Article 136 before the Supreme Court, which was dismissed on 18.07.1983 with the order “Special leave petition is dismissed on merits.” Subsequently, an amendment to the Kerala Act inserted Section 8C(2), enabling the High Court to review certain orders, including orders against which an appeal to the Supreme Court had not been admitted. Taking advantage of this provision, the State filed a review petition before the High Court. The High Court has overruled the preliminary objection regarding the maintainability of the petition and directed the review petition to be posted for hearing on merits. Aggrieved, the petitioners filed the Special Leave Petition before the Supreme Court whereby the two-judge bench directed the matter to the bench of three judges considering the importance of the matter involved.

Key Questions Answered

·      At what stage does the doctrine of merger become applicable in proceedings under Article 136?
·      What is the difference between dismissal of an SLP and dismissal of an appeal?
·      What is the effect where the Supreme Court dismisses an SLP by a reasoned order?

Brief Arguments by Petitioner

Two Major Concerns were involved:
1. The order of the High Court dated 17.12.1982 having merged into the order of this court dated 18.7.1983, the order of the High Court had ceased to exist in the eye of law and therefore an application seeking review of the order dated 17.12.1982 passed by the High Court and before the High Court is entirely misconceived;

2. the order dated 18.7.1983 passed by the Supreme Court amounts to affirmation of the order dated 17.12.1982 passed by the High Court and therefore the High Court cannot entertain a prayer for review of its order much less disturb the order in exercise of review jurisdiction.

Findings and Judgement

The above contentions placed by the appellant gives rise to some major concerns which needs conceptual clarity:
Doctrine of Merger
The doctrine of merger means that when an order of a lower court or authority is challenged before a higher court through an available appellate remedy, and the higher court decides the matter, the order of the lower court generally merges into the order of the higher court. Thereafter, it is the order of the higher court which remains the final, operative and enforceable order. The basic principle is that there cannot be two operative orders on the same subject matter at the same time. Once the superior court decides the case, whether it reverses, modifies or merely confirms the lower court's order, the decision of the superior court becomes the operative decision.
However, the doctrine is not automatic or universal. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. Thus, merely because a higher authority has passed some order, it cannot always be said that the lower court's order has merged into it.
This can be better understood with the help of the Judicial Precedents relied upon:
·      State of Madras v. Madurai Mills Co. Ltd., AIR 1967 SC 681
The doctrine of merger is not a rigid or universal rule. It depends upon the nature of the appellate/revisional order and the scope of the jurisdiction given to the superior authority by the relevant statute.
·      M/s Gojer Brothers Pvt.Ltd. Vs. Shri Ratanlal AIR 1974 SC 1380
There is no distinction between reversal, modification and confirmationfor the purpose of merger. In all three situations, once the appellate authority exercises its appellate jurisdiction and decides the matter, the lower court's order merges into the appellate order.
·      S.S. Rathor v. State of Madhya Pradesh, AIR 1990 SC 10
A larger Bench of the Supreme Court reaffirmed the doctrine of merger and held that where a statutory remedy is availed against an order, the finality of the original order is affected and the decision of the higher authority becomes the operative decision.

Stage of SLP and post-leave stage
The Supreme Court’s appellate jurisdiction is primarily governed by Articles 132–136 of the Constitution. While Articles 132–134 prescribe specific circumstances in which an appeal lies, Article 136 confers a wide and residuary discretionary power on the Supreme Court to grant special leave to appeal in cases not otherwise covered. Article 136 does not create a right of appeal; it only gives the Supreme Court discretion to grant leave where the Court considers interference appropriate in the interests of justice.
Therefore, proceedings under Article 136 involve two distinct stages:
(i) grant of special leave to appeal, and
(ii) hearing of the appeal after leave is granted.
At the first stage, the Supreme Court considers whether the case warrants granting special leave. If leave is granted, the SLP is converted into a regular appeal and is thereafter heard on merits. Therefore, at the first stage, the Supreme Court is exercising its discretionary powers rights and if the petition is converted to appeal, then the Supreme Court shall exercise its appellate rights.
To Conclude, four legal positions emerge:
1.   At SLP Stage:While considering an SLP, the Supreme Court exercises discretionary jurisdiction, not appellate jurisdiction. The petitioner has not yet entered the appellate arena.
2.   Dismissal of SLP:If the SLP is dismissed, it means the Court found no sufficient ground to invoke its appellate jurisdiction. The judgment challenged continues to remain final and binding.
3.   Grant of Leave:Once special leave is granted, the Supreme Court’s appellate jurisdiction is invoked and the matter enters the appellate stage.
4.   Effect on Judgment:Mere filing of an SLP does not affect the finality, validity or binding nature of the impugned judgment. Even after leave is granted, it remains effective unless it is stayed or suspended by the Supreme Court or is otherwise rendered a nullity.
Dismissal at stage of special leave: without reasons - no res judicata, no merger
Supreme Court discussed various judicial precedents and derived the following precedents :
·      Non-speaking dismissal does not amount to res judicata:Where an SLP is dismissed without assigning reasons, it only means that the Supreme Court was not inclined to grant special leave. It cannot be presumed that the Court decided the merits of the case. Therefore, res judicata or constructive res judicata does not apply merely because the SLP was dismissed. Further, Dismissal of an SLP, particularly by a non-speaking order, does not result in merger of the judgment of the High Court/Tribunal with the Supreme Court's order. The original judgment continues to operate between the parties.

·      Other remedies remain available:A non-speaking dismissal of an SLP does not, by itself, prevent the aggrieved party from pursuing an Article 226 writ petition or review before the High Court, where such remedy is otherwise legally available.

·      Finality of SLP dismissal is limited:Once an SLP is dismissed, a second SLP on the same judgment is generally not maintainable, but this finality does not mean that the impugned order has merged with the Supreme Court's order or that the original court loses its review jurisdiction.

·      Distinction between SLP dismissal and appeal dismissal:If special leave is granted and the appeal is thereafter dismissed, the situation is different. The doctrine of merger applies, and the judgment of the High Court/Tribunal merges into the Supreme Court's appellate order.

Case Laws Relied Upon

Case law	Crux of the judgment
Workmen of Cochin Port Trust v. Board of Trustees of Cochin Port Trust, (1978) 3 SCC 119	Dismissal of an SLP by a non-speaking order does not constitute res judicata. It only indicates that the Supreme Court did not consider it a fit case for grant of special leave.
Indian Oil Corporation Ltd. v. State of Bihar, AIR 1986 SC 1780	The dismissal of an SLP by a non-speaking order merely means that the Supreme Court declined to grant special leave and does not amount to adjudication of the merits of the case. No inference can be drawn that the issues raised were impliedly decided or that the impugned judgment was affirmed. Accordingly, such dismissal does not attract res judicata, constructive res judicata, or the doctrine of merger, and it does not, by itself, bar the aggrieved party from pursuing available writ or review remedies before the High Court.
M/s Rup Diamonds v. Union of India, AIR 1989 SC 674	Mere rejection of an SLP cannot be construed as the Supreme Court's imprimatur on the correctness of the judgment challenged.
Wilson Vs. Colchester Justices 1985 (2) All England Law Reports 97, the House of Lords stated;	Leave may be refused for several reasons, such as the case being fact-specific or not raising a question of general importance; similarly, grant of leave does not mean that the lower court’s judgment is considered wrong.
Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187	A non-speaking dismissal of an SLP cannot lead to an assumption that the Supreme Court implicitly decided the correctness of the judgment under challenge.
V.M. Salgaocar & Bros. Pvt. Ltd. v. CIT, (2000) 3 Scale 240	When an SLP is dismissed, the Supreme Court does not express any opinion on the correctness of the order challenged; it merely declines to exercise Article 136 jurisdiction. However, dismissal of an appeal is different and attracts merger.
Some decisions with contrary views
Sree Narayana Dharmasanghom Trust v. Swami Prakasananda, (1997) 6 SCC 78	it was held that a revisional order of the High Court against which a petition for special leave to appeal was dismissed in limine could not have been reviewed by the High Court subsequent to dismissal of S.L.P. by Supreme Court. the dismissal of special leave petition in limine operates as a final order between the parties. once a special leave petition is dismissed, whether by a speaking or non- speaking order or whether in limine or on contest, second special leave petition would not lie.
State of Maharashtra v. Prabhakar Bhikaji Ingle, (1996) 3 SCC 463	Order dealt with in S.L.P., disposed of by a non-speaking order cannot be subjected to review by the Tribunal.

Dismissal of SLP by speaking or reasoned order - no merger but Rule of discipline and Article 141 attracted.
Doctrine of Merger – not applied
Based on various judicial precedents, it was held that a non-speaking order dismissing an SLP does not attract the doctrine of merger and does not amount to a declaration of law under Article 141, since no reasons or law are stated. Even where the SLP is dismissed by a speaking order, there is still no merger because the Supreme Court has exercised only discretionary jurisdiction to refuse leave, and not appellate jurisdiction.
Legal precedent binding under Article 141
However, any legal principle or declaration of law contained in the reasons of such an order is binding under Article 141 on all courts and tribunals, while findings on matters other than law bind the parties and the concerned court/tribunal on the principle of judicial discipline. Thus, speaking reasons may create a binding precedent under Article 141, but they do not result in merger unless leave to appeal has been granted and appellate jurisdiction has been exercised.

Decision relied upon	Crux / Principle
Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswami Iyer & Ors., AIR 1965 SC 165	The Supreme Court’s power under Article 136 is extremely wide and discretionary, and no rigid rules can be prescribed for its exercise. The effect of an order disposing of an SLP is limited to the points actually decided by the Supreme Court. If a point was specifically raised by the respondent at the stage of grant of leave and was decided against him, he cannot raise the same point again at the final hearing. However, if the point was not raised or was not decided while granting leave, there is no res judicata bar, and it can be raised at the final hearing of the appeal.
Abbai Maligai Partnership Firm & Anr. v. K. Santhakumaran & Ors., (1998) 7 SCC 386	Where the SLP was dismissed after both sides were represented and heard, the High Court subsequently entertaining a belated review and reversing its earlier order was held to be subversive of judicial discipline and an abuse of the process of law. The Supreme Court treated the conduct as an affront to its order, particularly because the review was entertained after a substantial delay. Importantly, the decision did not rest on the doctrine of merger, but on the principle of judicial discipline and respect for the Supreme Court’s order.
Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1	The doctrine of merger generally requires three conditions: (i) exercise of appellate or revisional jurisdiction; (ii) exercise of such jurisdiction after notice; and (iii) full hearing in the presence of both parties. Once these conditions are satisfied, the appellate/revisional order replaces the lower court’s order.
Junior Telecom Officers Forum v. Union of India, 1993 Supp. (4) SCC 693	The SLP was dismissed after hearing both sides on merits, and the Supreme Court had actually interfered with the High Court’s order to a limited extent. Hence, despite formal non-grant of leave, the Court had effectively exercised appellate jurisdiction, and the Tribunal could not reopen the matter.

Doctrine of merger and review
The doctrine of merger is closely connected with the right of review. Where special leave is granted and the appeal is thereafter decided by the Supreme Court, the High Court’s judgment merges with the Supreme Court’s judgment and consequently cannot be reviewed by the High Court. However, where the SLP is dismissed without grant of leave, there is no merger, and the aggrieved party retains any statutory right of review otherwise available before the High Court.
As per Order 47 Rule 1(a) CPC, the relevant date for determining whether a review is maintainable is the date on which the review application is filed. Since an SLP does not become an appeal unless special leave is granted, a review may be filed and considered by the High Court until the stage of grant of special leave. If the review is filed before leave is granted, its subsequent grant does not automatically invalidate the review; however, once special leave has been granted, the Supreme Court acquires appellate jurisdiction and the High Court ordinarily cannot entertain a fresh review application. Further, if the review is allowed before the appeal is decided, the original decree ceases to exist and the appeal against that original decree becomes infructuous. Thus, the critical distinction is “SLP filed/dismissed” versus “leave granted”, mere filing or dismissal of an SLP does not bar review, whereas grant of leave shifts the matter into the appellate jurisdiction of the Supreme Court. This can be better understood with below table covering all the situations:

Situation	Position regarding Review before High Court
1. No SLP is filed	Review can be filed before the High Court, subject to the normal requirements of Order 47 Rule 1 CPC.
2. SLP is filed, but Special Leave is not yet granted	Review can still be filed and entertained by the High Court. Mere filing of an SLP does not mean that an appeal is pending in the eye of law.
3. SLP is filed and subsequently dismissed without grant of leave	Review can still be filed, even after dismissal of the SLP, because no appeal ever came into existence. Dismissal of the SLP does not create a merger.
4. Review is filed before the SLP is filed	The review is maintainable. The subsequent filing of an SLP does not automatically take away the High Court's power to decide the review.
5. Review is filed before Special Leave is granted, and thereafter SLP is allowed/granted	The already-filed review can still be disposed of by the High Court. The crucial point is that the review application was filed when no appeal existed in law.
6. Review is allowed before the Supreme Court decides the appeal	The original decree/order ceases to exist and is replaced by the decree/order passed on review. Consequently, the appeal filed against the original decree becomes infructuous/incompetent.
7. Special Leave is granted before any review application is filed	A fresh review cannot thereafter be filed before the High Court, because once leave is granted, the Supreme Court's appellate jurisdiction is invoked and the validity of the High Court's order is before the Supreme Court.
8. Appeal is Dismissed	Once leave has been granted, appellate jurisdiction has been invoked and the doctrine of merger applies. High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted.

SLP may be rejected for various reasons. The list below is only illustrative:
(i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (v) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the apex court of the country and so on.
The Supreme Court clarified that mere dismissal of an SLP, whether speaking or non-speaking, does not result in merger, as the Supreme Court has not exercised appellate jurisdiction. A non-speaking dismissal does not attract Article 141 or prevent the original court from exercising its review jurisdiction. However, in a speaking dismissal, any law declared by the Supreme Court is binding under Article 141. Once special leave is granted, the matter becomes an appeal, the Supreme Court exercises appellate jurisdiction, and the impugned order merges into the subsequent appellate order, whether the appeal is allowed, modified, or dismissed.
To conclude:
1.      Doctrine of Merger: When a superior court, in appeal or revision, reverses, modifies or affirms the order of the lower forum, the lower order merges into the superior court’s order, which thereafter remains operative.
2.      Two Stages under Article 136: Article 136 operates in two stages : first, consideration of the prayer for special leave; second, the appellate stage after leave is granted and the SLP is converted into an appeal.
3.      Limited Application of Merger: The doctrine of merger is not universally applicable. It applies only where the superior forum exercises jurisdiction capable of reversing, modifying or affirming the order. Therefore, under Article 136, merger applies at the appellate stage, not at the SLP stage.
4.      Dismissal of SLP: Whether the SLP is dismissed by a speaking or non-speaking order, there is no merger. The original order is not substituted by the Supreme Court’s order; it merely means that the Supreme Court declined to grant leave to appeal.
5.      Speaking SLP Dismissal: If the SLP is dismissed by a speaking order, the law declared by the Supreme Court is binding under Article 141. Other findings may bind the parties and lower forums by judicial discipline, but there is still no merger.
6.      Grant of Leave: Once special leave is granted, the Supreme Court exercises appellate jurisdiction. The order may be reversed, modified or affirmed, but in all cases the doctrine of merger applies.
7.      Effect on Review: Once an appeal has been preferred or an SLP has been converted into an appeal after grant of leave, the High Court loses jurisdiction to entertain a review petition on the same matter under Order 47 Rule 1 CPC.

Author’s Comment

This judgment of the Apex Court is a clear and comprehensive explanation of the doctrine of merger and the law relating to review. It deals with different situations arising from the dismissal of an SLP and clearly explains the distinction between an SLP and an appeal. Importantly, the judgment explains that filing an SLP involves the exercise of the Supreme Court’s discretionary jurisdiction, whereas the Court assumes appellate jurisdiction only after special leave is granted and the SLP is converted into an appeal.
This distinction assumes importance in view of the recent decision in Bhandari Scrap Traders, where the SLP was dismissed at the threshold while upholding the Gujarat High Court’s decision on merits. This had raised several questions among professionals regarding the binding effect of the decision and the availability of the remedy of review. The present judgment provides a clear answer. Although the SLP was dismissed without grant of leave and, therefore, there was no merger, the law declared by the Supreme Court in a speaking order is binding under Article 141 of the Constitution. At the same time, since the Supreme Court did not assume appellate jurisdiction, the doctrine of merger does not apply and the parties are not deprived of their right to seek review before the original forum.

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GST update /2026-27/0078